Citation Nr: 0800518
Decision Date: 01/07/08 Archive Date: 01/22/08
DOCKET NO. 05-31 679 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an effective date earlier than September 24,
2003 for the apportionment of the veteran's Department of
Veterans' Affairs benefits on behalf of his minor child.
ATTORNEY FOR THE BOARD
Sarah E. Abraham, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1964 to
November 1966. The appellant is his former spouse. She
initiated this matter on behalf of the child she had with the
veteran, who was a minor at that time.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a June 2004 apportionment decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida.
It is also observed that the appellant has sought an
extension of the apportionment of the veteran's benefits for
the benefit of his child from the date of the child's 18th
birthday (February 2005) until his May 2005 graduation from
high school. This does not appear to have been addressed by
the RO, and is referred there for appropriate action.
FINDING OF FACT
A claim for apportionment of the veteran's VA benefits was
received on September 24, 2003.
CONCLUSION OF LAW
Entitlement to an effective date prior to September 24, 2003,
for the grant of apportionment of the veteran's VA benefits,
is denied. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§
3.400, 3.458 (2006); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994).
REASONS AND BASES FOR FINDING AND CONCLUSION
With respect to VA's obligations to notify and assist as set
out in 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159, it is
noted that this was initiated as an apportionment claim by
the appellant on behalf of the veteran's minor child. That
claim was obviously substantiated, since an apportionment was
awarded. As such, the purpose of the aforementioned legal
provisions have been satisfied. The appellant now disputes
the downstream issue of the effective date assigned for the
award of benefits that was granted. Her procedural
safeguards with respect to this aspect of the claim process
have been fulfilled by the issuance of a statement of the
case, and her submission of a substantive appeal. Although
the veteran was not provided relevant copies of these
documents because of his adverse interest, since the appeal
is being denied, no harm accrues because of that.
The evidence of record reflects that the appellant and the
veteran were married in March 1985 and divorced in January
2002. They have one child, born on February [redacted], 1987. On
September 24, 2003, the appellant filed a claim for
apportionment of the veteran's VA benefits on behalf of her
minor child. In June 2004, the RO granted entitlement to an
apportionment of the veteran's VA benefits, effective
September 24, 2003. The sole issue is whether an effective
date earlier than September 24, 2003 is warranted for the
grant of apportionment of the veteran's benefits.
The appellant contends that she filed a claim for
apportionment on January 29, 2002. She believes that VA
received this letter because the veteran had to repay an
overpayment of benefits in the summer of 2002, following
notification of their divorce. The file does not contain any
evidence of an apportionment claim filed prior to September
24, 2003, or of repayments made by the veteran in the summer
of 2002. Furthermore, the veteran was granted service
connection benefits in February 2002; this award included
payments for two dependants, a spouse and a child. The
earliest evidence of VA's knowledge regarding the appellant
and veteran's January 2002 divorce is her September 2003
correspondence.
The law provides that all or any part of a veteran's pension
or compensation benefits may be apportioned. 38 U.S.C.A. §
5307; 38 C.F.R. § 3.450. The laws applicable to effective
dates provide that, except as otherwise provided, the
effective date of an award based on an original claim, shall
be fixed in accordance with the facts found, but shall not be
earlier than the date of receipt of application. 38 U.S.C.A.
§ 5110(a). The appellant's claim for apportionment on behalf
of the veteran's child was received by VA on September 24,
2003. Since the effective date in this case is governed by
the date of receipt of the claim for the apportionment, there
is no basis for awarding apportionment any earlier.
In sum, the law is dispositive in this case. Thus, there is
no legal basis to award an earlier effective date for the
grant of the apportionment of the veteran's VA benefits.
Accordingly, the claim must be denied as a matter of law.
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
ORDER
Entitlement to an effective date earlier than September 24,
2003, for the apportionment of the veteran's Department of
Veterans' Affairs benefits on behalf of his minor child, is
denied.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs